H.W. v. Comal Independent School District, 32 F.4th 454, 122 LRP 14177 (5th Cir. Apr. 27, 2022), illustrates some of the divisive issues that have emerged concerning the requirement to place students with disabilities in the least restrictive environment and furnish them the services and modifications they need for successful placement there. The case concerned an elementary school student with Down syndrome, hypothyroidism, ADHD, asthma, and a speech impediment. In the years from kindergarten and the beginning of third grade, the district developed IEPs for her, based on full evaluations and functional behavioral assessments with corresponding behavioral intervention plans. Ultimately, the district proposed a placement it called “blended,” consisting of 235 minutes per day in special education (plus additional time for speech) and 150 minutes per day in general education. Opportunity to participate with students without disabilities would be in nonacademic, extracurricular, and other such activities.
The hearing officer upheld this program as appropriate education in the least restrictive environment. The district court affirmed, as did the court of appeals. The appellate court looked to Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997) and Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1038 (5th Cir. 1989) as controlling authority in the Fifth Circuit. Applying Michael F., it found the student’s program sufficiently individualized and said it was designed by key stakeholders. Although the student made progress in general education, there was a dispute about how much progress the student made. Turning to Daniel R.R. and the factors it identified concerning least restrictive environment, the court said the district took adequate steps to accommodate the student in general education by implementing a modified curriculum and a behavior intervention plan, as well as inclusion support and extended school year services.
The court said the student did not receive meaningful educational benefit in the sense of grasping the essential elements of the general education curriculum while she was in the general education classroom for academic instruction. The court said it should look not just to progress on IEP goals but rather to the student’s overall academic record, disagreeing with the approach of L.H. v. Hamilton County Department of Education, 900 F.3d 779, 793 (6th Cir. 2018), which emphasized whether the student made progress on the goals of the IEP while in general education, even if the student did not master the general education curriculum. The H.W. court stressed that H.W. was falling behind her peers in test scores and percentile rankings.
Moreover, said the court, the student had a disruptive effect on the general education classroom. “The hearing officer and district court found that although there was no direct evidence of H.W. impairing the education of other students, the totality of the evidence established that she had a ‘negative, detrimental’ effect on others,” H.W., 32 F.4th at 470, in that “she hit, bit, and kicked staff and peers; yelled, screamed, moaned, and grunted in the classroom; and swiped materials off desks,” id. The court deemed the proposed program the least restrictive environment for the student.
One might speculate whether the decisive factor for the court was the student’s disruptive effect on the general education class. The court did not go into depth about the behavior interventions that had been or might have been used to minimize the disruption, so it is difficult to assess the proper significance to attach to the behavior. But from a perspective of the development of the legal doctrine concerning least restrictive environment, the most important part of the case appears to be the conflict with the Third Circuit on the importance of progress on IEP goals as opposed to grasping the essential elements of the general education curriculum.